1. Cultivating marijuana for recreational use: HS 11358

Since Proposition 64 was passed in 2016, it has been legal to cultivate marijuana for personal recreational use, provided that both of the following are true:

You are 21 or older; and

You cultivate no more than six (6) marijuana plants.6

There are other restrictions that apply to legal marijuana cultivation in California as well. These include:

You must abide by any local ordinances in place where you are growing pot plants;

Unless local law permits otherwise, the plants must be grown indoors or on the premises of your private property, in a locked space, where they are not visible by ordinary unaided vision from a public place; and

No more than six plants may be cultivated at a single private residence (i.e., you and your spouse can cultivate no more than six plants total, as opposed to six plants each, at your home).7

The term “cultivate” means to do any of the following:

plant,

cultivate,

harvest,

dry, or

process ...

any marijuana or any part thereof.8

You do not need to be present to cultivate marijuana. You are considered to cultivate marijuana under Health and Safety Code 11358 HS If you are involved in any way with the marijuana's growth, harvesting or processing. Simply helping someone remove the leaves so that they can be smoked is enough.9

2. Cultivating medical marijuana in California

California's "Compassionate Use Act of 1996" (the "CUA") became law by voter passage of Proposition 215. Its provisions are set forth in California Health and Safety Code 11362.5 and subsequent sections.

The CUA exempts the following people from the California laws that govern possession and cultivation of marijuana for most people:

People who use marijuana with doctor approval to treat a serious medical condition,

Primary caregivers to such patients, and

Members of medical marijuana collectives (also known as "dispensaries").10

Medical marijuana patients and their primary caregivers may cultivate up to:

six mature marijuana plants,

12 immature marijuana plants, or

with a doctor's recommendation, a greater amount consistent with the patient's reasonable need.11

3. Penalties for the unlawful cultivation of marijuana

3.1 HS 11358 penalties (after Proposition 64)

Since the legalization of recreational marijuana by Proposition 64, violation of California Health and Safety Code 11358 HS, by growing more than six marijuana plants for personal recreational use, is a California misdemeanor for most defendants.12 It is punishable by:

Up to six (6) months in county jail, and/or

A fine of up to five hundred dollars ($500).13

However, HS 11358 calls for felony penalties for people who cultivate more than six marijuana plants and fall into one of the following categories:

People with serious violent felonies on their record;

Registered sex offenders;

Defendants who have two (2) or more prior convictions for cultivating more than six marijuana plants; and

For these defendants, illegal cultivation of marijuana for recreational use is punishable by sixteen (16) months, two (2) years or three (3) years in county jail, and/or a fine of up to ten thousand dollars ($10,000).14

3.2 Drug diversion under California Penal Code 1000 PC

As long as your arrest was for the cultivation of excessive amounts of marijuana for personal use only, and you are a non-violent first- or second-time offender, you may be eligible to have sentencing held off while you complete drug treatment. This is known as "deferred entry of judgment (DEJ)." It is authorized by California Penal Code 1000 PC.

To receive DEJ, you must meet certain eligibility requirements and plead guilty to the charges before you are sentenced.15 If the judge allows you to receive drug treatment, sentencing will be delayed for a period of 18 months to three years while you complete it.

Upon your successful completion of drug treatment, the judge will dismiss your case. Once your case is dismissed, the arrest ceases to exist for most purposes. Most importantly, you will not need to disclose it on most job, housing and similar applications.16

3.3 Resentencing or redesignation under Prop 64

Proposition 64, passed in 2016, radically changed the law on marijuana cultivation in California.

Let's say you were convicted of HS 11358 marijuana cultivation before 2016, and you had been growing six or fewer plants. Under the post-Prop 64 version of HS 11358, you would not have been guilty of a crime at all.

Even if you had been growing more than six plants, under the new version of HS 11358 you would have been guilty of a misdemeanor--not a felony.

Fortunately, Proposition 64 (in new Health and Safety Code section 11361.8 HS) allows people convicted under the old version of Health and Safety Code 11358 HS to apply for resentencing or redesignation of their offense.

The court is supposed to presume that you meet the criteria for resentencing, and grant you resentencing unless that would pose an unreasonable risk to public safety.

Depending on how much of your sentence you have already served, resentencing under Prop 64 could lead to your immediate release from jail.

The same is true if you have already completed a felony sentence for violation of California's marijuana cultivation law. Marijuana legalization means that you can apply to have your marijuana cultivation conviction redesignated from a felony to a misdemeanor--or expunged entirely if you had been growing six or fewer marijuana plants and so would not have been guilty of any crime under the new version of HS 11368.

4. Defenses to charges under Health and Safety Code 11358

There are numerous possible defenses to charges of unlawfully cultivating marijuana in California.

Here are just a few:

the marijuana belonged to someone else

Example: Alexandra lives in a condominium building with 14 units. About a dozen pot plants are found growing in the communal garden, just outside her window. But having a 1 / 14th interest in the garden is not enough, in itself, to make Alexandra guilty of cultivating marijuana.

you did not know the pot was there

Example: Someone plants over 100 marijuana plants on vacation property owned by Brandon. Brandon only visits his vacation property twice a year. Even though the plants are on Brandon's property, it is not enough to convict him of growing marijuana. The prosecutor must prove ... at the very least ... that Brandon knew about the plants and did nothing about it.

you did not know it was marijuana

Example: Caroline's boyfriend plants a garden at Caroline's house. Some of the plants are marijuana. There are about 10 plants, and the plants are not in a locked location. Caroline sees the plants every time she goes out to water the garden, but she does not know that they are marijuana. Unless the prosecutor can establish that Caroline knew what marijuana plants look like, Caroline should be found not guilty of violating Health and Safety Code 11358.

you are a medical marijuana user whose needs cannot be met by the cultivation limits in Prop 64 and the Compassionate Use Act

The right to use medical marijuana under California's Compassionate Care Act, and the need to use greater amounts than the Prop 64 cultivation limits provide is an affirmative defense to charges of illegally cultivating more than six mature marijuana plants.17

You do not need to have a state-issued medical marijuana ID card to use this defense. However, the burden is on you to prove: 1. you have a serious medical condition (as defined in the CUA), 2. a physician recommended or approved marijuana for your treatment, and 3. a physician confirmed that you need more marijuana than can be supplied by the normal limits on marijuana cultivation.18

Example: Gregor is busted for growing 25 pot plants. Even though he legally uses marijuana to treat his glaucoma, the prosecutor charges him with unlawfully cultivating more than is necessary for personal use. But Gregor can prove that his yard is subject to high temperatures for much of the year. Marijuana plants do not do well at high temperatures and many of his plants die. Accordingly, a jury may conclude that the amount of marijuana Gregor grows is reasonably related to his personal, medical needs.19

Example: A neighbor tells the police that Fred is growing a large quantify of pot on his property. The alleged plants are not visible from the road. Rather than attempting to obtain a warrant, the officer flies a helicopter over Fred's property. When he sees the plants, he has Fred arrested.

Because the plants were not visible from the road, the use of a helicopter to look at Fred's property constituted an illegal search. The case against Fred should be thrown out.21

5. Related California Offenses

5.1 Simple possession of marijuana - Health and Safety Code 11357

Simple possession of up to 28.5 grams of marijuana is not a crime in California. Possession of more than that amount is a misdemeanor under California Health and Safety Code 11357.

But simple possession of more than 28.5 grams of marijuana is a "lesser included offense" of cultivation of excessive amounts of marijuana. If you are found guilty of unlawful cultivation, you will not receive a separate punishment for possessing it.22

Since one marijuana plant produces a very limited amount of usable pot, people grow often several marijuana plants at a time.

Unfortunately, many California prosecutors automatically assume that anyone who grows more than a few plants Intends to sell them. (Marijuana sales are legal after Prop 64, but only for people/businesses who have a state license to sell marijuana.) Therefore, people who grow pot purely for recreational use (or even legitimate medical use) are often charged with violating Health and Safety Code 11359--marijuana possession with Intent to sell.

5.3 Selling marijuana - Health and Safety Code 11360

After the passage of Prop 64, unlicensed sale/transport of marijuana is a misdemeanor in most circumstances but is sometimes a felony (for example, for defendants who intend to sell marijuana to minors).23

Under the Supremacy Clause of Article VI of the United States Constitution, the CSA takes precedence over California marijuana laws, Including Proposition 64 and the CUA.26 Thus, people who cultivate any amount of recreational or medical marijuana in California violate federal law.27

A first offense for "manufacturing" (cultivating) fewer than 50 marijuana plants is punishable by:

Up to five (5) years in prison, and

A fine of up to $250,000.28

As a practical matter, however, the US government is not interested in prosecuting people who comply with state laws on the use of medical or legal recreational marijuana. Instead, federal law enforcement is focused on:

Preventing the distribution of marijuana to minors,

Preventing the proceeds of marijuana sales from going to organized criminal gangs,

Preventing the diversion of marijuana from states where it is legal to those where it is not,

Preventing violence and the use of firearms in connection with the distribution of marijuana,

Preventing legal marijuana markets from being used as a cover for the trafficking of other illegal drugs, and

Preventing drugged driving.29

Thus, the federal government is highly unlikely to step into cases involving cultivation of marijuana (legally or not) for personal use.

6.2 Marijuana cultivation and immigration

A California conviction for illegal marijuana cultivation is a "controlled substance offense" under the Immigration and Nationality Act.

Accordingly, you face deportation if:

you are not a citizen of the United States, and

you plead guilty to - or are found guilty of - the unlawful cultivation of marijuana in California.30

6.3 Marijuana cultivation on federal property or in HUD housing

The CSA applies on federally owned property within California. Even medical marijuana users and primary caregivers, and recreational marijuana cultivators complying with state law, face federal prosecution If they cultivate marijuana on federal property, such as a national park.

Additionally, the US Department of Housing and Urban Development ("HUD") lets local housing authorities set their own policies on medical marijuana use and cultivation. Many do not allow medical marijuana in HUD housing. Although rarely enforced, the discovery of medical marijuana in HUD housing can lead to the loss of food stamps and other federal benefits.31

Call us for help ...

Call us for help...

For more information about California's marijuana laws, or to discuss your case confidentially with one of our criminal defense attorneys, please do not hesitate to contact us at Shouse Law Group. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Legal references:

California Health and Safety Code 11362.77. ("(a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 marijuana immature plants per qualified patient. (b) If a qualified patient or primary caregiver has a doctor's recommendation that this quantity does not meet the qualified patient's medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient's needs. (c) Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision (a ).

California Health and Safety Code 11358 HS, endnote 1 above.

California Health and Safety Code 11362.2 HS.

California Health and Safety Code 11358 HS, endnote 1 above.

People v. Tierce (1985) 211 Cal.Rptr. 325, 165 Cal.App.3d 256.

California Health and Safety Code § 11362.5 (d) HS. ("Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes patient upon the written or oral recommendation or approval of a physician.")

See CALCRIM 2370. ("Defense: Compassionate Use[[Possession or cultivation of marijuana is lawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess or cultivate marijuana (for personal medical purposes / [or] as the primary caregiver of a patient with a medical need) when a physician has recommended [or approved] such use. The amount of marijuana possessed or cultivated must be reasonably related to the patient's current medical needs. The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or cultivate marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime. [A primary caregiver is someone who has consistently assumed responsibility for the housing, health, or safety of a patient who may legally possess or cultivate marijuana.]]")

United States Constitution, Amendment IV. ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.")

Based on People v. Sneed (1973) 108 Cal.Rptr. 146, 32 Cal.App.3d 535 (Officers' flight in helicopter hovering 20 to 25 feet above backyard of house rented by defendant, in search for marijuana plants which were not visible from road, constituted an unreasonable governmental instruction into privacy of defendant's backyard and amounted to a "search" without a warrant that did not fall within limited classes of searches for which warrant is not required).

See CALCRIM 2370 notes.

California Health and Safety Code 11360.

21 US Code 812 (c), Schedule I (c) (10).

21 US Code 811 (b) (1).

Gonzales v. Raich (2005) 545 US 1.

See People v. Mitchell (2014) 170 Cal.Rptr.3d 825, 225 Cal.App.4th 1189, review filed (holding that the Medical Marijuana Program Act (MMPA) is a defense only to California law, not to the federal law making marijuana cultivation a federal felony).

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